Background Briefing

III. Judgment of the Appeals Chamber

The written reasons of the trial chamber were not made available to the defense until November 22, 2006, 17 days after the reading of the verdict on November 5. The IHT Appeals Chamber was constituted on December 12, and delivered its opinion upholding all convictions on December 26. The speed of the decision, the brevity of the opinion (17 pages) and the cursory nature of the reasoning make it difficult to conclude that the Appeals Chamber conducted a genuine review as required by international fair trial principles.102

The Appeals Chamber dealt with the numerous procedural problems at trial in one paragraph, in which it did little more than assert the conclusion that the defendants had received a fair trial.

As for other defenses, the defendants were given enough guarantees to have a fair trial. Each suspect was informed of the kind of accusations filed against him. [Each suspect] was given ample chance to defend himself and to choose his legal advisors and attorneys in person with the assistance of legal counselors. [Each suspect] was given the chance to interview the defense witnesses. [Each suspect] used his rights fully to defend himself. [Each suspect] was not forced to say what he did not want to say. Then the defense [each suspect] is using in this regard is rejected too.

The absence of any real review of the procedural flaws in the trial was compounded by the Appeals Chamber’s failure to examine and review the trial chamber’s application of law to the substantive offenses. In fact, the Appeals Chamber aggravated the errors of the trial chamber by drawing wholly erroneous legal conclusions, and by asserting factual propositions that went even further beyond the evidence than the trial chamber.

For example, in its conclusions upholding the conviction of Saddam Hussein, the Appeals Chamber asserted he “actually supervised and conducted” interrogations of suspects from Dujail and “ordered his people to torture them.” The first of these findings was not made by the trial chamber, and the second was made but acknowledged to be without evidentiary basis.103 Similarly, the Appeals Chamber asserted that Saddam Hussein knew of crimes committed by his subordinates because he was “in authority as former president of the republic, and whereas he directed his crimes against the civilian population of Dujail with the purpose of killing, [therefore] the intent to kill is present.”

Taha Yassin Ramadan was also found to have knowledge of the crimes of his subordinates, “because [he] had actual authority over his subordinates by virtue of his position.” In relation to ‘Awwad al-Bandar, the Appeals Chamber asserted that Bandar had “confessed that he was forced to perform as a judge for those trials.” In fact, Bandar had made no such admission, stating that “as for the considerations of the Dujail case [before the Revolutionary Court], I am convinced by them professionally … Given the circumstances of the time and of the crime, the court had no other legal choice but that.”104

The lower-level defendants’ conviction was upheld because their participation in arrests led to the torture and deaths of those arrested, “regardless of whether [the defendants] intent was direct or indirect at the time of committing these acts.” The Appeals Chamber also finds that the lower-level defendants “instigated” the crimes of which they were convicted, although this finding was not made by the trial chamber.

The IHT Appeals Chamber decision is so poorly and erroneously reasoned that it raises real suspicions that the chamber failed to act impartially in the performance of its legal duties.

102 Article 14(5) of the ICCPR provides for the right to an appeal. An appeal can take a variety of forms, depending on the nature of the legal system but must amount to a genuine review. Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (Arlington: N.P. Engel, 1993), p. 266.

103 See above note 55.

104 ‘Awwad al-Bandar, statement before investigative judge, February 27, 2005.